The ECJ in Achbita and Bougnaoui: Legalising Discrimination in Europe?

On March 14th 2017, the European Court of Justice issued two much-awaited judgments on the right to wear Islamic headscarves in private sector companies. In this post, I summarise both judgments, and respond to a criticism voiced by the New York Times editorial board, according to which the ECJ in these cases gave in to political pressures in Europe and in doing so effectively ‘legalises discrimination in Europe.’ While the Times is mistaken in characterising the ruling as driven by political motivations, I do join the newspaper in taking issue with the Court’s embrace of the notion that a general policy of banning religious garment — even if it applies generally to all religions — is an appropriate and necessary means for businesses to project an image of neutrality towards their customers. By defending this view, the Court misrepresents the symbolic meaning of headscarfs for women of the Muslim faith. This, in turn, further excludes Muslim women from the employment market.

In Achbita, a Belgian female employee of the Muslim faith had been dismissed by security firm G4S for refusing to remove her Islamic headscarf. This refusal ran counter a company policy which G4S had adopted after hiring Ms Achbita.

The connected case of Bougnaouiinvolved a dismissal of a Ms Bougnaoui by a French IT consulting company, Micropole SA. The company had justified the dismissal on the grounds that customers had requested Ms Bougnaoui not to wear the Islamic veil, and she had refused to comply with this request.

Ms Achbita and Bougnaoui had challenged their dismissal before the Belgian and French courts. In doing so, they relied on national legislation aimed at implementing EU anti-discrimination legislation. The French and Belgian supreme courts asked questions to the ECJ regarding the interpretation of the relevant EU rules.

EU legislation in principle prohibits both direct and indirect discrimination on the basis of religion or belief, disability, age or sexual orientation as regards employment and occupation. Indirect discrimination – i.e. discrimination which does not facially discriminate, but which disproportionally affects certain groups or individuals — can be justified, however. For such discrimination to be justified, the contested measure must have a legitimate aim, and the means of achieving that aim must be appropriate and necessary.

In Achbita, the ECJ held on the first requirement that ‘[a]n employer’s wish to project an image of neutrality towards customers relates to the freedom to conduct a business … and is, in principle, legitimate, notably where the employer involves in its pursuit of that aim only those workers who are required to come into contact with the employer’s customers.’

On the second requirement, the Court held that ‘the fact that workers are prohibited from visibly wearing signs of political, philosophical or religious beliefs is appropriate for the purpose of ensuring that a policy of neutrality is properly applied, provided that that policy is genuinely pursued in a consistent and systematic manner.’

On the third requirement, the ECJ submitted that ‘what must be ascertained [by the national court] is whether the prohibition on the visible wearing of any sign or clothing capable of being associated with a religious faith or a political or philosophical belief covers only G4S workers who interact with customers. If that is the case, the prohibition must be considered strictly necessary for the purpose of achieving the aim pursued.’

The holding of the ECJ in Achbita is thus a narrow one: a general policy of neutrality towards customers can be acceptable, and a requirement to conceal the visible expression of one’s beliefs, including one’s religious beliefs, can be an appropriate and indeed necessary means to pursue such a policy, provided it is restricted to employees who engage in contact with customers.

To this holding the Court added in the connected case of Bougnaoui that, in the absence of a company-wide policy of neutrality, a mere request by a customer for an employee not to wear a headscarf does not constitute a justification in the meaning of the applicable EU legislation. In particular, such a wish does not qualify as a ‘genuine and determining occupational requirement’ in the meaning of the applicable directive on equal treatment in employment and occupation, and thus cannot qualify as an exception to the general principle of non-discrimination on the basis of religion.

Legalising discrimination in Europe?

The ECJ’s rulings, in particular the judgment in Achbita and Bougnaoui have been heavily criticised in the press. The New York Times, for example, spoke of a ‘legalisation of discrimination in Europe’, and suggested the ECJ in both cases had given in to political pressures, whereas it should be guarding against rising prejudice across the continent.

Is this criticism justified?

The most contentious holding is the one in Achbita, where the Court laid down a general rule. While the Court did undertake efforts to limit the scope of application of the rule by restricting it to employees in contact with customers, what remains is nonetheless problematic.

Uncontroversial is the proposition that projecting neutrality is a legitimate aim. The first requirement is thus met. More questionable, however, is the Court’s treatment of the second and third requirements (i.e. is the measure appropriate? and is it necessary?).

In particular, it is not clear why banning visible expressions by employees of their religious beliefs ought to be understood as expressing a form of sympathy towards or endorsement of a particular religion (or philosophy or political ideology, although religion is, of course, the contentious case).

A brief look at the experience of other countries, in particular the UK or Canada, demonstrates that protecting the neutrality of the state does not require its employees to refrain from wearing religious garments. In both of these countries, it is uncontroversial for government employees to wear christian crosses, Sikh turbans or Islamic headscarfs.

These practices are not understood as imperilling the religious neutrality of the state. To the contrary perhaps: they demonstrate the state’s support for religious pluralism within the country’s society. Arguably, an argument by analogy can be made here: if allowing government employees to wear religious garments does not undermine the neutrality of the state, then why would the same not apply to private businesses?

The Court does not engage with this objection, and instead asserts, without explaining, that a general and undifferentiated policy of prohibiting the visible wearing of signs of political, philosophical or religious beliefs in respect of members of its staff who come into contact with its customers is both appropriate and necessary.

The scarcity of legal reasoning on the issue is particularly puzzling as the Advocates General defended conflicting views on the issue.

In Achbita, AG Kokott deferred to the wisdom of the employer to assess whether restricting the wearing of religious, philosophical or political inspired garment constitute a legitimate aim. She also had no doubt that banning such garment is both appropriate and necessary to attain the aim. In making this argument, AG Kokott did not consider the Canadian or British experience.

AG Sharpston in Bougnaoui, by contrast, defended the opposite view. She recognised that the freedom to conduct a business is a legitimate aim that in some cases can justify measures of indirect discrimination, but added that this freedom must be balanced against the religious freedom of the individual employee. Required, AG Sharpston (in my view rightly) held, is mutual accommodation. And while the final decision on the matter comes to the referring national court, she did express serious doubt that a general prohibition could be considered appropriate and necessary.

The symbolic meaning of the headscarf to Muslim women

Underlying the conclusions of AG Kokott and Sharpston are, I believe, conflicting understandings of the symbolic meaning of the headscarf to women of the Muslim faith.

For AG Kokott — and one can assume for the Court — the headscarf is not an integral part of the identity of those who wear it. As she held: ‘G4S does not prohibit its employees from belonging to a particular religion or from practising that religion, but requires only that they refrain from wearing certain items of clothing, such as the headscarf, which may be associated with a religion’ (para. 69).

For AG Sharpston, by contrast, the link between the headscarf and religious identity is much stronger and at least for some women unbreakable:

[T]o someone who is an observant member of a faith, religious identity is an integral part of that person’s very being. The requirements of one’s faith – its discipline and the rules that it lays down for conducting one’s life – are not elements that are to be applied when outside work (say, in the evenings and during weekends for those who are in an office job) but that can politely be discarded during working hours. Of course, depending on the particular rules of the religion in question and the particular individual’s level of observance, this or that element may be non-compulsory for that individual and therefore negotiable. But it would be entirely wrong to suppose that, whereas one’s sex and skin colour accompany one everywhere, somehow one’s religion does not.’ (para. 112)

I believe the Court’s embrace of AG Kokott’s argument ultimately explains why the case of Achbita came down the way it did.

This is unfortunate, as in doing so the Court reveals a certain lack of understanding of the symbolic meaning of the headscarf to women of the Muslim faith in contemporary Europe. As Guardian journalist Iman Amrani argued the day after the rulings, for many Muslim women wearing the headscarf is non-negotiable, and requiring them to take it off during working hours will compel them to seek employment elsewhere — as indeed occurred in both Achbita and Bougnaoui.

In this regard, it is not for the ECJ to take a stance on the question of whether or not a headscarf is required by Islamic theology. All that is needed is a sincere belief that by wearing a scarf, a woman lives in accordance with the prescriptions of her faith. To question the sincerity of a women on this issue, would come down to denying her autonomy as a human being. A degree of deference to the litigants was thus required — a deference AG Kokott and the Court failed to demonstrate.

In Achbita, the ECJ effectively erects an additional and perhaps insurmountable barrier between the employment market and a group of individuals who are already particularly vulnerable — exposed as they are to practices of discrimination on the basis of both gender and religion.

It is regrettable that the Court in Achbita did not examine more closely the role of the headscarf in the religious experience of Muslim women in Europe. Its failure to do so has pernicious effects. These effects lend support to the Times‘ claim that in this case the ECJ indeed opens the door to legalising discrimination in Europe.